42. Prayer for dissolution not necessary on bill for accounting between partners: Bentley v. Bates, 10 M. R. 525.

43. The interest of a deceased mining partner represented by his admin istratrix, considered with respect to a subsequently acquired lease, holding that the right of action was in her: Clegg v. Fishwick, 1 Mic. & Gor. 294.

44. In a suit against the executor of a former partner in an oil well, the surviving partner was not allowed to testify for the plaintiff as to the existence of such partnership: Hogeboom v. Gibbs, 88 Pa. St. 235.

45. Loan of money in consideration of a percentage on the business does not make the lender a partner: Boston Co. v. Smith, 13 R. I. 27; 43 Am. R. 3.

46. Party attending meetings and purchasing shares, held, though he had never signed the partnership deed: Ellis v. Schmoeck, 13 M. R. —

47. His admissions may hold him without proof that he signed the deed· Reynolds v. Kay, 9 B. & C. 355. Or by proof of applying for shares without proof of accepting them: Bog Lead M. Co. v. Montague, 10 C. B. N. S. 481.

48. Participation in profits makes a partner; but not the receipt of commissions on sales to miners of defendant's colliery brought to the concern by the defendant: Pott v. Eyton, 3 C. B. 32.

49. A man need not give notice that he is not a member of a firm with which he has never been connected, though one of the members is a partner with him under a different firm name: Jones v. O'Farrel, 1 Nev. 354.

50. A person dealing with a firm must have notice of dissolution in order to avoid his transactions with one of the partners after dissolution: Kenney v. Altvater, 77 Pa. St. 34.

51. Desertion of partnership: Von Schmidt v. Huntington, 6 M. R. 284.

52. A partnership may be implied from acts as well as by express agreement: Manville v. Parks, 7 Colo. 128.

53. Each partner has power to use the credit of the firm in working the mine-but not to borrow money or give notes. Id.

54. Partnership may exist without ownership of the mine. Id.

55. There can be no judgment against a partner not served: Davidson v. Knox, 7 Pac. 413.

56. A contract by which parties agree to procure a purchaser for a mine, working together for a sale, held, to constitute a partnership: Kayser v. Maugham, 6 Pac. 803; 8 Colo. 232.

57. It is not competent for the adventurers in a cost book mine to stipu late by their rules that unpaid calls shall be recovered as a debt due from the defaulting shareholders to the purser: Hybart v. Parker, 4 C. B. N.

S. 209.

58. Two persons jointly acting in a mining venture are partners whether they so agree or not: Snyder v. Burnham, 77 Mo. 52.

59. Proof that a defendant had allowed himself to be given out at the mine as a capitalist interested in the mine with representations by the mine captain that the mine was being worked by a person of substance whose name he was not at liberty to give, held, to bind him as a partner: Martyn v. Gray, 14 C. B. N. S. 824.

60. All parties held as partners from the commencement, although by agreement among them certain individuals were to furnish all the capital for the first six months: Peel v. Thomas, 15 Com. B. 714.

61. The lien of a partner does not entitle him to possession to the exclusion of his co-tenant, although the partnership has ceased: Morganstern v. Thrift, 6 Pac. 689.

62. A mining partner objecting to a receiver can not charge for his own services as manager: Pierce v. Pierce, 5› Mich. 629.

1

420 MINING Co. v. BULLION MINING Co.

(3 Sawyer, 634. U. S. Circuit Court, District of Nevada, 1876.)

1 Method of determining who is entitled to patent. In the bill it was prayed that the complainant be decreed to be entitled to the mining ground in controversy, and that the defendant holds the legal title by patent from the United States in trust for complainant. Held, in or der to ascertain which party was entitled to a patent it is only necessary to determine which party at the time of its issue was the rightful owner of the mining claim in question, as against everybody but the United States, under the laws, rules, customs and decisions of the courts in force at the time in the locality embracing it.

The miner's right a pre-emption. The right given by the mining acts of congress, is a right to purchase in the nature of a pre-emption, and is in nowise like an inchoate, imperfect, Spanish grant.

Idem Not a bounty. The right of purchase under the United States mining acts is not a bounty..

Res adjudic..ta—Judgment on issues in bar and in abatement. In 1872 the 420 Mining Company brought suit against the Bullion Mining Company to determine the right of the latter company to 420 feet of the Comstock lode. Under the statute of Nevada, allowing matters going only to defeat the present action, as well as defenses on the merits to be pleaded together, defenses of the two sorts were accordingly pleaded. The issues upon both were found for defendant, and the judgment was entered in a form appropriate as an adjudication upon the finding upon the merits: Held, that the title was res adjudicata and the parties were estopped from further litigating the merits. Estoppel-The element of mutuality in a judgment. In a case in which the findings and judgment are conclusive on both parties if conclusive on one, the estoppel is mutual within the rule, without regard to the question what would have been the effect had the findings and judg ment been different.

Judgment reversed to avoid estoppel. If a judgment is broader in its scope and more advantageous to the plaintiff than he is entitled upon the record to have it, it may be reversed, although there is no technical error, solely upon the ground that all the points covered by it would be res adjudicata and operate as an estoppel. Finding vacated without reversing judgment. One of several findings may be set aside without reversing the judgment if the remaining findings are sufficient to support the judgment, and the finding so vacated would be thus taken out of the operation of the rule relating to res adjudicata.

Adverse claim Statute of Limitations.

The Statute of Limitations of Nevada, constitutes a part of the local laws, by which the right be

1 Bay State Co. v. Brown, 21 Fed. 167; McGinnis v. Egbert, 8 Colo. 41; Wolverton v. Nichols, 2 Pac. 308; 5 Mont.

tween an applicant for patent and an adverse claimant are to be determined.

Parol partition. A parol partition of a mining claim, if followed by ex

clusive possession of the several parcels, is doubtless valid; the parties cease to be tenants in common, and forever after deal at arm's length. All relation of trust and confidence ceases. Ouster of tenant in common-Statute of Limitations. The taking possession of the whole mining claim by one tenant in common under a conveyance hostile to the title under which the co-tenancy exists, and excluding the co-tenant, is an ouster, from the date of which ouster the Statute of Limitations begins to run in favor of the tenant so taking exclusive possession, and against his co-tenant.

No fiduciary relation after ouster. Where a tenant in common has ousted his co-tenant, there ceases to be any fiduciary relation between them.

Adverse possession generates new title. Adverse possession for the time limited by the Statute of Limitations, not only bars the remedy but extinguishes the right and vests a perfect title in the adverse holder. Affirmative aid to limitation title. A title acquired under the Statute of Limitations may be quieted in the adverse holder upon a bill in equity, filed for that purpose, even against the holder of the paper title barred. 1Application for patent—A proceeding in rem. Proceedings to procure a United States patent should be regarded as a proceeding in rem conclusive upon all the world.

Idem---Res adju licata. The doctrine of res adjudicata should be rigorously applied to the litigation brought to test the right to the issue of a patent.

Demurrer to bill in equity.

The facts as alleged in the bill are as follows: On June 23, 1859, John Cosser and Walter Cosser, under the firm name of Cosser & Co., J. Morris, J. Durgan, Thomas Winters, V. A. Houseworth, C. True, J. Powell and A. Ricard located and appropriated, in the manner prescribed by the mining rules on the Comstock lode, a mining claim of 1,600 feet in length on the lode; took possession of the same, and thereby, as tenants in common, became the owners of said claim, as against all the world, except the United States. In July, 1859, the said parties, while still in possession, by a verbal agreement, to which all assented, agreed that said mining claim should be segregated into two parts, and that said Durgan, Morris, Powell, Ricard and True should

Wolfley v. Lebanon Co., 13 M. R. --; Wight v. Dubois, 21 Fed. 693; St. Louis Smelting Co. v. Green, 4 McCr. 233; Raunheim v. Dahl, 9 Pac. 892.

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thenceforth, as tenants in common, own and possess exclusively the portion of said claim and lode extending from its northern boundary southerly a distance of 420 feet, and should release all their interest in the other portion of said claim and lode to said Winters, Cosser & Co. and Houseworth, who should own and possess, in the same manner, said southern portion of said claim and lode, and release to said first-named parties all their interest in said northern portion of 420 feet. In pursuance of said agreement a monument was placed to mark the division line and the parties took possession of their respective portions, Durgan and his associates taking possession of the northern part, and Winters and his associates. of the southern part, and thenceforth each of said parties and their successors in interest exclusively held possession and improved the part so allotted to them, in accordance with the mining rules and regulations, and claimed no interest in the other portions of said claim or lode. No written conveyance was ever made in pursuance of said agreement, and no demand for one was ever made, except the demand for the purposes of this action. All the right, title and interest of said Durgan and his associates in said north 420 feet of said lode were subsequently, by sundry mesne conveyances, conveyed to the complainant, a corporation organized under the laws of Nevada. Between the segregation, as aforesaid, and January 1, 1864, said Durgan and associates had spent in prospecting and developing said mine not less than $30,000, and sine the latter date the 420 Mining Company have for like purposes spent an additional sum of $30,000. The Bullion Mining Company, a corporation organized under the laws of California, has since acquired all the right, title and interest of said Winters and his associates in the southern portion of said lode, and has since held the same in accordance with the mining rules and regulations. On November 16, 1868, the Bullion Mining Company commenced an action in the proper court against the 420 Mining Company, to recover said northern 420 feet of said lode, alleging title in plaintiff, and wrongful possession and withholding by defendant. Defendant answered, admitting possession by defendant, but denying that the possession was wrongful. This action was voluntarily dismissed on plaintiff's motion without trial, on June 3, 1872, without notice to the defendant to the